Charles Murray describes
himself as a libertarian, most notably in his short book,
What it Means to be a Libertarian[2].
He might more accurately
have described himself as having libertarian tendencies. My reading of
“Simple Justice” is that the views it espouses are far more
traditionalist than libertarian. Neither traditionalist state-retribution
nor modernist state-leniency is libertarian. Nor does either provide as just
or efficient a response to crime as does libertarian restitution, including
restitutive retribution. Here, I shall respond directly only to Murray’s
views, rather than also deal with state-leniency.This is because I accept Murray’s thesis, without endorsing his
specific arguments for it, that state-leniency is disastrous as a response
to crimes against persons and their justly acquired property.

It
is shocking and disgusting to see states today give violators of persons
and property the upper hand, while they commit their crimes, throughout
the judicial procedure after apprehension and during their trials, and
in their final sentencing upon being convicted. The offensiveness of
this country’s criminal justice system is compounded by the gross inefficiency
of state policing here. However, to agree with Murray about the injustice
and inefficiency of the current way of dealing with crime is about as
far as a libertarian can really go. In commenting on Murray’s paper,
I shall outline a radical and genuinely progressive libertarian option.
In so doing, I recognise, and make no apology for the fact, that I stand
at the extreme end of the libertarian spectrum.

Who
needs the state?

According to those who
occupy my preferred end of the libertarian spectrum, states serve no useful
purposes, including the maintenance of law and order, that could not be
achieved more effectively and justly by private and purely voluntary
agencies and associations, created and maintained out of the uncoerced
actions of ordinary private individuals acting only from self-interest and
the dictates of their consciences.[3]
Throughout, I use ‘libertarian’ in this extreme sense, although there
are also minimal-state libertarians. I shall begin by briefly outlining my
own libertarian conception of crime and of the way in which it should be
treated, with which even most radical libertarians may disagree, and without
offering very much by way of clarification or criticism of it.[4]

The
origins of law may be traced to anarchically evolved, and ever-evolving,
enforceable rules of conduct specifying how people must behave to avoid
aggressing against the persons or justly acquired property of others.[5]
Acts that intentionally or recklessly aggress against the persons or
property of others—and which thereby tend to add indignity and fear—constitute
the only ‘crimes’ there are in the libertarian sense of that word. That
there are no real victimless crimes—for instance, producing and selling
state-banned medications or recreational drugs—is a key libertarian
tenet Murray fails even to mention.

In
the libertarian view, there is no necessary connection between law and
crime, on the one hand, and what a state decides to command or forbid
by way of conduct, on the other. A state may forbid conduct not at all
criminal in the libertarian sense, and it may permit conduct that is
criminal. Indeed, from the libertarian perspective, states themselves
notoriously authorise and engage in forms of criminal conduct, most
notably taxation (systematic extortion) and aggressive war (mass murder).
Note that this evolved-law thesis asserts not merely that such state
‘law’ and activity is immoral, but that it is not really law or legal
at all. A type of conduct no more becomes legal or illegal simply because
the state says so, than it becomes moral or immoral because it does.
Nor does anyone’s command become law simply because he has the power
to enforce it.

Wherever
a genuine crime has taken place, in the libertarian sense of the term,
then there is some victim of it whose person or justly acquired property
has been proactively imposed on in some way by another person and who,
in consequence, enjoys against that perpetrator of the crime a just
claim to full restitution for the disvalue sustained as a result of
its perpetration—in principle, at least, for it might not always be
practical or possible to extract it. Thus, libertarian criminal law
and civil law overlap. All crimes require restitution, but not all legal
restitution is owed because of a crime. Perpetrators of crime owe their
victims as restitution more than whatever would fully compensate for
whatever proximate damage or loss their victims suffer to their person
or property, including any feelings of shock or fear they suffer as
a result of these crimes. In addition, perpetrators of crime owe their
victims restitution for the additional risk to which they put them that
they might not be able to recover any restitution because their assailant
manages to escape conviction. I call this latter variable the ‘risk-multiplier’.

The
risk-multiplier

For example, if there is
only a one in ten chance perpetrators of a given kind of crime are
apprehended and convicted, then full restitution to victims of it involves
their perpetrators having to cede to their victims something of equal value
to the value of the proximate loss each suffers to person or property,
multiplied by ten. This is precisely what victims require to receive from
their assailants to take account of the risk that was imposed on them.[6]
Only to require criminals to make restitution for whatever proximate damage
they cause their victims would mean they are allowed to impose on their
victims, without having to make any restitution for it,the often far greater disvalue they cause their victims by the risk
that they might escape.[7]

Consider
a different kind of case from the risk-multiplier, but one that clarifies
the disvalue of imposed risks as such. Suppose someone imposes on your
head a game of Russian roulette in which the gun does not fire, although
there was a one-in-six chance it might have done. Surely you are owed
not just for any fear, etc., to which you were subjected, which, in
this instance, forms the proximate damage you were made to suffer, and
which might have been relatively small had the episode occurred very
suddenly or even without your knowing at the time. You are surely also
owed an additional amount, probably much higher and possibly infinite,
that it would be reasonable of you to demand from anyone who sought
to impose that risk on you. Similarly, someone caught and convicted
of a crime should not be let off having to provide his victim with restitution
for the risk he had imposed on him that he might, ex ante, have
got away with his crime.[8]

Insuring
against crime

However, the full debts
perpetrators of crime owe their victims in restitution for their crimes are
debts the victims might have chosen, in anticipation they might become
victims, to ‘sell’ on to insurance companies through taking out policies
against any losses sustained by becoming a victim of such (or any) crimes.
Victims might also be able literally to sell the restitution owed them after
they have fallen victim to a crime. In either case, victims of crime would
acquire against their insurers a claim for a sum that would fully compensate
them for any proximate disvalue suffered, but which takes no, or only
partial, account of the risk-multiplier. Whether or by how much it did would
depend on the precise terms of their contract.

Those
who take out such policies might be able to guarantee they receive compensation
should they ever fall a victim of crime, even if its perpetrators are
never detected. Meanwhile, their insurance companies will have acquired
from their clients a claim, should they become victims of crime, against
their assailants for recovery of the full debt they owe their clients.
This full debt they owe includes what is generated by the risk-multiplier.
The difference between what companies pay out to their clients in compensation
for becoming victims of crime and what the companies thereby become
owed by its perpetrators provides them with the inducement to take over
these debts that criminals, in the first instance, owe their victims.

Competing
private agencies are far more likely to be able to catch and prosecute
genuine criminals without becoming corrupted in the process than are
state institutions, which maintain monopolies in this domain by aggressive
violence. Moreover, competing private insurance companies are more likely
than states to ensure that victims of crime receive quick and adequate
compensation. The large amounts owing as a result of the risk-multiplier
might be thought to create the moral hazard of inviting fabrication
of evidence, whether by individuals or institutions. However, it must
be remembered the risk-multiplier also applies in cases of any large
sums fraudulently claimed. In addition, most claims will be sold on
to insurance companies which stand to lose all custom if found fraudulent
in this way, if not simply wiped out immediately by having to pay any
risk-multiplier debt.

Restitutive
retribution

If mere financial
compensation were the only form in which restitution could be demanded by
victims, people who wished to commit crime would effectively be able to
purchase a licence to do so. Should victims prefer, they should be able to
obtain ‘restitutive retribution’.[9]
This is exacted by criminals being made to suffer as much personal injury or
pain as they caused their victims magnified by any risk-multiplier. If you
twist my arm, as though it were your property to use as you wish and in
doing so break it, you thereby cede me a reciprocal right to break yours, or
else for me to have it broken by an agent acting for me. This might look
like retribution pure and simple. Where is the literal restitution, or
restoration, in my breaking your arm? However, suppose the restitution owing
me in monetary terms is £100,000. Should I prefer to take some fraction of
that sum in the form of some reciprocal treatment of you, then that is
simply how I choose to spend that much of the restitution I am owed.
Alternatively, I might prefer to take all my compensation in money and buy a
car instead, but that would not ‘restore’ my arm to not being broken
either. You cannot complain that I am proactively
imposing on you or imposing to a greater degree than you had imposed on
me. Proactive impositions and reactions in excess of the risk-multiplier are
all that this libertarian theory disallows.

From
a libertarian perspective, therefore, the key deficiency in Murray’s
account is the false dichotomy it poses between, on the one hand, retribution
in the sense of punishment and, on the other, leniency. The libertarian
position, by contrast, is one that embodies restitution for crime, where
this is understood as criminals having to repay their victims amounts
equal in value to whatever overall losses they are caused—although,
as we have seen, victims may choose to obtain restitution in a retributive
way. I should add that Murray also fails to distinguish, and then reconcile,
deontological and consequentialist arguments for retribution.

In
none of the seven hypothetical scenarios that Murray offers to test
the moral proclivities of his readers (pp. 7-8) does he include among
the possible options an explicitly libertarian response. If, in all
the relevant hypothetical scenarios save the last, restitution is put
in place of punishment, a libertarian can happily answer ‘3’ to all
the questions that Murray asks about them. The final hypothetical scenario
concerns the legitimacy of forcibly injecting a criminal-suspect with
a truth drug. In this case, to force a suspect not yet found guilty
to take such a drug, without at least his having previously entered
into some contractual obligation to submit to one upon suspicion, is
itself a case of proactively imposing upon someone, and thus a crime
in the libertarian sense. Moreover, when libertarian restitution is
substituted for punishment, it becomes difficult to see why opting for
‘3’ in any of the other cases qualifies as being “tough”, the adjective
Murray uses to describe the attitudes of those likely to choose that
option. What is so tough about thinking victims of crime qualify for
receiving from their assailants full restitution and ought to receive
it, if often only indirectly via insurance companies?

Is
the state a community?

Murray claims “[t]he
primal function of a system of justice is to depersonalise revenge.... [T]he
individual will take his complaint to the community. In return, the
community will exact the appropriate retribution; partly on behalf of the
wronged individual, but also to express the community’s moral values”
(pp. 18-19).What is said here
seems wrong on many levels. Justice does not have an ‘essence’ or
“primary function” that simply needs to be cited to succeed thereby in
refuting all competing conceptions of justice. If retribution is superior to
restitution, Murray needs to argue for that thesis. Individual victims of
crime may need the support of others, but why should they be entitled to
receive it from “the community”? Murray appears to use this term as a
euphemism for the state. However, whereas the state is an organisation (and,
in the eyes of libertarians, a criminal one), a community is not. Nor is a
community a moral agent, so it has no “moral values.” Only individuals
have these. Why cannot private agencies be able to assist wronged persons
better than states, as has been argued by many libertarian theorists, not
least by Bruce Benson?[10]

On
behalf of his position, Murray cites the Kantian thought-experiment
that asks whether a murderer should be executed if his execution served
no purpose other than ‘pure justice’ (p. 19). Kant and Murray say he
should be. Libertarians say the correct answer is to be found in the
victim’s legal defence contract or in his will, or in his known or likely
opinion or in the decision of his heirs or other relevantly assigned
persons, although I doubt many would want to let the murderer off. It
is not up to “the community”—that is, the state—to decide.

Murray
is similarly wrong when later on he explicitly states that victims “do
not have the moral right to abrogate the community’s obligation to punish
wrong behaviour” (p. 20). In the event a victim of some crime genuinely
wishes to receive no restitution from his assailant, then, assuming
there has been no intimidation of the victim by the criminal etc., that
should be his or her choice, however foolish most other people might
find it. In a sense, the victim retroactively consents to undergoing
whatever the criminal has inflicted on him. In these circumstances,
whoever exacts “retribution” on behalf of that victim or “the community”
initiates a crime against
the aggressor who has been forgiven by his victim. Such injustices are
the sorts of thing that typically occur when statists attempt to take
the law into their own hands in the name of “the community” or society.
From a libertarian point of view, however, there is nothing unjust in
people choosing to ban, boycott or berate anyone for any reason at all,
provided in so acting they proceed in accordance with private property
rules. Hence, provided they conform with these rules, people may take
such action against anyone whose behaviour they regard as despicable,
although whoever it is might have escaped and be able to escape successful
prosecution for acting as he has done. For instance, many might
for such a reason choose to ban someone from their private property
and policing companies might even refuse to protect such a person.

Murray
explains the “core tenets” of retributive justice as follows:

The necessary and sufficient justification for punishing criminals is that they
did something for which they deserve punishment. 'Something' refers to the behaviours that society has defined as
offences. 'Deserve' means that the offenders are culpable—morally
responsible. Society not only has the
right but the duty to punish culpable offenders. (p. 20. Emphases in original.)

Again, from a libertarian
perspective, what Murray claims here is open to all sorts of question. What
right has “society” to define what does and does not count as an
offence, when all that is here meant by “society” is some state run
according to the rules of elected oligarchs? It is, objectively, an offence,
as the opposite of a defence, for anyone knowingly to impose proactively on
the person or justly acquired property of someone else. If people merely
defend themselves or their property against such impositions, they are not
guilty of any offences against anyone. The state itself commits crimes when
it attempts to impose on people things that conflict with protecting persons
and their property. How and why should anyone be “culpable” if they seek
to evade such arbitrary impositions? The state is not “society”, a term
which denotes the free and spontaneous association of people. Nor has a
state the right to punish anyone, even if a victim wants it to do so. For
the opportunity-cost of its so doing is to exclude the possibility of the
superior market system that would operate without the state’s extortion of
resources through taxation and inflation of the money supply, the two
principal sources of the state’s revenue.

Who
needs judges?

Why
should it be supposed, as Murray appears to, that, in all criminal cases,
there is need of “jurors” or “judges”?Murray only supposes this because he is thinking entirely within the
traditionalist statist framework of law and order. It is hard in advance to
know what different methods of securing and administering criminal justice
would evolve were only the market allowed to operate here. On-the-spot
payments for relatively minor crimes, as even the present British government
has recently suggested for shoplifting although not as restitution, need not
be either inefficient or an easy option, especially given the
risk-multiplier element.

In defending the admissibility
in court of the past criminal record of an accused on trial, something
with which I cannot disagree, Murray interestingly suggests that “[d]ivinely
accurate retributive justice would not punish for the one burglary out
of dozens when the burglar got caught, but for the aggregate harm that
the burglar has done” (p. 25). This is effectively what criminals are
being asked to provide as restitution when what they are computed as
owing takes into account the risk-multiplier. Its extraction would feel
to the criminal like he was being punished for all the times he was
not caught as well. Moreover, what the criminal will be deemed to owe
for his crime will, through using the risk-multiplier, often be a lot
more severe than state punishment currently is. Only the exaction of
this form of restitution maximises the chances that “crime does not
pay” which is Murray’s expressed desire in his final end-note. In principle,
it will, typically, not be worth committing any crime because its potential
benefits will be at least negated by its potential losses, and any other
efforts and expenses will make it even less attractive. We should certainly
see the crime level drop back again, and to far lower levels than obtained
even in the 1950s to which Murray likes to hark back. We would only
see the risk-multiplier fall if proportionally more criminals were brought
to book.

Like many traditionalists, Murray
is keen on prison. He writes, “[i]n modern England, the only authentic
punishment for modern felonies is imprisonment” (p. 25). Prison is indeed
a serious punishment. But it is both Draconian and unnecessarily expensive
for the most part, while being too lenient in extreme cases. Unless
someone poses so great a risk to others that he is likely to do more
damage than he could ever pay in restitution, or else he refuses to
pay restitution (non-contractual bankruptcy cannot be an option), there
is no need for his incarceration. Such extreme cases are relatively
few and far between and will be all the more so once criminals see that
full risk-multiplier restitution will be enforced. In any case, since,
in a libertarian world, prisoners will be obliged to pay their way in
prison, being obliged to work there if they want to be fed, there is
no need to worry about the expense of maintaining them whilst incarcerated
in private prisons. However, for many lesser criminals, mere electronic
tagging would at most be necessary or else some other, more inventive,
option that only competition is likely to evolve efficiently. And these
would provide more cost-effective and more humane alternatives to prison.

In
the small minority of cases in which huge debts are owing that are unlikely
to be paid by ordinary work, then extreme measures must be taken to recover
them. These would still not be punishment but remain the enforcement
of restitution. What I am proposing might sound harsh. But the only
alternative is to allow the guilty to get away with their crimes against
the innocent, which is surely harsher and completely unjust. Sometimes,
a crime will be too great for full restitution to be possible, either
in terms of property damage (malicious computer viruses often cause
this) or personal damage, even a single murder, let alone bombing innocent
civilians for political reasons. In these cases, we shall at least have
done the best we can.

Overall,
Murray’s traditionalist-retribution might be less bad than is the existing
modernist-leniency that offers even less by way of just and efficient
deterrence. However, in arguing for it, Murray entirely overlooks a
third option more just, progressive and efficient than either. This
is the way of dealing with crime through enforcing libertarian-restitution
as the appropriate response to it. Murray must have read enough libertarian
literature to be aware of this third option. It is a pity he chose not
to consider it in his essay.[11]

NOTES

[1]Being one of the commentaries
from Simple Justice by Charles
Murray with commentaries, Civitas 2005.

[3]
The two rightly celebrated introductions to this ideology are David D.
Friedman, The Machinery of Freedom:
Guide to Radical Capitalism (1973; 2nd ed., La Salle, Ill.: Open
Court, 1989) and Murray N. Rothbard, For
a New Liberty: The Libertarian Manifesto (1973; rev. ed., New York:
Macmillan Co., 1978).

[5]
F. A. Hayek has famously distinguished spontaneously evolved law from
state legislation in his Law,
Legislation and Liberty (London: Routledge & Kegan Paul,
[1973-79], 1982). But as a classical liberal, rather than a libertarian,
he thinks that state legislation can be a useful supplement. See also
Bruno Leoni’s Freedom and the Law
(1961; expanded 3rd ed., Indianapolis: Liberty Fund, 1991).

[6]
All victims of this type of crime have a claim of this sort, but if more
than one in ten aggressors starts being caught then the risk-multiplier
eventually comes down in proportion.

[7]
I suspect there are difficulties with my current formulation of the
risk-multiplier but my intuition is that some consistent version of it is
possible and correct.

[8]
During the course of a crime, the
risk-multiplier restitution that would be owed if the aggressor escapes
means the victim can retaliate up to that value. It will be very
approximate at the time, of course, but it means that the victim has clear
leeway to be more violent than the criminal (even, in restitutive
retribution, as the criminal is fleeing: this might be seen as a more just
version of the “outlaw” view that Murray defends).

[9]
Here I agree with Bruce L. Benson, and disagree with some other
libertarians, that there is room in libertarian restitution for
retribution (i.e., that restitution may be taken in the form of
retribution). See Bruce Lowell Benson, ‘Restitution in Theory and
Practice’, Journal of Libertarian
Studies 12, no. 1 (1996): 75–97.

[10]
For instance, see Bruce L. Benson, The
Enterprise of Law: Justice without the State (San Francisco: Pacific
Research Institute for Public Policy, 1990).

[11]
This essay is far clearer than it otherwise would have been thanks to
critical responses from Mark Brady, David Conway, David Goldstone and
David McDonagh.

Top 50 books of all time : by Old Hickory:- "I have limited the selection to the books I have read. I keep to the norm of not recommending to others books I have yet to read. Clearly, books I have not read by now suggests a judgement of some sort."